The Majority Opinion: Legal Blog

As always, there are some recent EEOC cases that jump out at me when I review recent developments on that front.  Below are a couple EEOC cases and settlements that stand out: PMT Corporation to Pay in Excess of $1 Million to Settle Age and Sex Discrimination Suit Earlier this month, it was announced that PMT Corporation would pay a little over $1 million to a class of job applicants who alleged the company engaged in a pattern of systematic hiring discrimination.  According to the facts alleged, PMT hired over 70 individuals as sales representatives between January 1, 2007 and late 2010, however, none were female or over 40 years old.  The suit claimed this was intentional and directed by PMT's owner and president.  This alleged conduct was in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act.  Based upon the facts in this case, it was certainly an uphill climb for PMT to establish a lack of age and sex discrimination...b

Nelson v. Watch House International, LLC - Fifth Circuit Court of Appeals Facts :  Michael Nelson ("Nelson") worked at Watch House International, LLC ("Watch House") from March 2010 until March 2014.  Upon being hired, Nelson was provided with an employee handbook which included an Arbitration Plan which set out, among other things, that any disputes that arose during the employment would be arbitrated.  Nelson alleged that during his time at Watch House, his coworkers harassed him based upon his religion and race.   He subsequently filed suit and alleged he was discharged from Watch House in violation of Title VII of the Civil Rights Act of 1964 and Chapter 21 of the Texas Labor Code.  Watch House moved to compel arbitration based upon the Arbitration Plan.  Nelson objected to the Arbitration Plan on the grounds that it was illusory because it did not include a savings clause in regard to existing claims and disputes and failed to require advance notice

Callahan v. City of Chicago - Seventh Circuit Court of Appeals Facts :  Between January 2009 and August 2011, Melissa Callahan ("Callahan") drove a taxi in Chicago.  Although Callahan did not own her own taxi or medallion (that authorizes the driver to operate a taxi in Chicago), she leased them.  According to Callahan, her net proceeds averaged less than the minimum wage.   Callahan brought an FLSA claim against the City of Chicago ("City") on the grounds that the City must make up the difference.  (For purposes of this analysis, we will look at her second reasoning why the City should be liable:  The City's regulations on taxi drivers were so extensive, the City must be treated as her employer. At the lower court level, summary judgment was granted in the City's favor as to Callahan's minimum wage claims on the grounds that the City was not her employer simply by acting as a regulator.   Holding :  The Court of Appeals began its ana

This week, I came across several articles in regard to minimum wage issues as well as a recent development on the equal pay front out of New Jersey.  In an election year when middle class issues are at the forefront, these are two hot button issues that will likely remain increasingly prevalent over the next few months. As always, below are a few articles that caught my eye this week. Supreme Court Nominee Merrick Garland Could Greatly Impact Labor & Employment Rulings Thanks to a loyal reader of the blog for passing this article along.  As the heading suggests, and as Allen Smith writes, United States Supreme Court nominee Merrick Garland has a history of making several employee friendly rulings when he has been confronted with labor & employment law cases on the D.C. Circuit Court of Appeals.  Of note, in the 22 cases he has authored that dealt with labor & employment issues, 18 of those rulings deferred to the decisions from the National Labor Relations B

United Food & Commercial Workers Union, Local 1473 v. Hormel Foods Corp. - Wisconsin Supreme Court Facts :  United Food & Commercial Workers Union, Local 1473 ("the Union") filed a class action on behalf of current and former Hormel employees who alleged that Hormel violated Wisconsin wage and hour law by failing to pay employees for the time spent donning and doffing required work clothing and equipment such as hard hats, eye wear, and sanitary footwear, among other items.  The 330 employees included in the class were involved in grinding and blanching meat, cooking, and then canning the product at a Hormel plant.  It was alleged that each employee spent nearly 5.7 minutes per day donning and doffing the clothing and equipment, which amounted to approximately 24 hours per year.  The Union argued that because this time was not included in the employees' compensation, the employees were working nearly 40 per week without being paid overtime.  At the tria

Readers might remember that New York Governor Andrew Cuomo has aggressively advocated for a $15/hour minimum wage rate for workers across the state.  ( Governor Cuomo Begins Bus Tour Across New York to Push for $15/Hour ).  This follows on the heals of SUNY workers getting a $15/hour minimum wage hike along with New York City fast food workers getting the same $15/hour rate .   However, to make a $15/hour wage rate a reality across the state, the New York legislature has to approve the bill that Governor Cuomo has pushed.  Apparently, New York Republican Senate Majority Leader John Flanagan has talked with Governor Cuomo about a compromise on the proposed $15/hour minimum wage legislation.  As a trade off, Governor Cuomo would stay on the sidelines for an upcoming special election to replace a New York state senator, in return for the $15/hour minimum wage legislation getting passed.   While much of this is tentative (and nothing has officially been announced), it would be

ConAgra Foods, Inc. v. NLRB - Eighth Circuit Court of Appeals Facts :  In August 2011, the United Food and Commercial Workers International Union, Local 75 ("Union") sought to organize workers at a ConAgra manufacturing plant in Ohio.  In early 2012, ConAgra posted a letter on a bulletin board at the plant that reminded workers that ConAgra had a policy in place that employees could not solicit union support or distribute union related materials during working time or in work areas.  In September 2012, an incident occurred between Janette Haines ("Haines"), a leading proponent of union organization, and Megan Courtaway ("Courtaway") and Andrea Schipper ("Schipper").  The relevant facts were disputed with Haines stating she talked with Courtaway and Schipper on several occasions in the bathroom in regard to singing union authorization cards.  Courtaway said that Haines had actually approached them on the production floor and Schipper overh

Earlier this month, Vermont Governor Peter Shumlin signed into law a bill that will require employers provide paid sick leave for their employees.  In a move lauded by President Obama, under the bill, H. 187, employees in Vermont who work full time will be guaranteed at least three paid sick days from work in a 12 month period beginning January 1, 2017.  By 2019, that number will increase to a guaranteed five paid sick days. This new law applies to all employers in the state, but there is an exemption provided for new employers.  (These new employers will not have to comply until one year after the employer hires its first employee.)    In addition, the earned sick time requirements will not apply to federal employees, employees under the age of 18, employees employed for 20 weeks or fewer, or employees that are employed on jobs that last 20 weeks or fewer. For those employers who already offer paid sick leave, this law might not impact them.  Of course, it depends on whethe

Before the next few weeks get very, very busy, I was able to spend most of the week in the office to catch up.  I read several articles that dealt with minimum wage issues from around the country.  Perhaps the most interesting article dealt with the impact that Seattle is experiencing after raising the minimum wage rate in the city to $15/hour.  Although this is just one study, it serves as a warning that a $15/hour minimum wage rate might not be the economic boon that some have suggested. As always, below are a few articles that caught my eye this week. A Closer Look at the Impact of Seattle's $15/Hour Minimum Wage Hike The New York Post has taken a look at the impact that Seattle's implementation of a $15/hour minimum wage rate has had on employment in the city.  As the article notes, unemployment rates have gone up in the city with a loss of 10,000 jobs in just three months, over the past September, October, and November.  However, employment rates have gone u

Socko v. Mid-Atlantic Systems of CPA, Inc. - Pennsylvania Supreme Court Facts :  David Socko ("Socko") was hired as a salesperson at Mid-Atlantic in March 2007.  Upon being hired, Socko signed an employment contract which contained a two year non-compete covenatn.  Socko resigned in February 2009 but upon being rehired in June 2009, he hired a new employment agreement which contained another two year non-compete covenant.  While still employed at Mid-Atlantic, Socko signed a third employment contract in December 2010 which contained a non-compete for two years after his termination of employment. Socko resigned from Mid-Atlantic in January 2012 and accepted a position elsewhere a few weeks later.  After Mid-Atlantic sent a letter to Socko's new employer and threatened litgiation, Socko was terminated from his new position.  Socko filed suit against Mid-Atlantic and alleged that the non-compete was not enforceable because it was not supported by sufficient consi

Earlier this week, the Tennessee House of Representatives approved a bill that would eliminate a question on a job applicant's criminal history when seeking a state government position.  While the bill does have some exemptions, such as still allowing the Tennessee Bureau of Investigation, the state Department of Education, and the state Board of Education to still ask about an applicant's criminal history, this is a major development.  Advocates of this bill, and other "Ban the Box" measures around the country, argue that these laws are necessary to provide an equal opportunity to applicants that have been convicted of a crime.   Since this bill has already been approved by the Tennessee Senate by a 25-7 vote, the measure heads to Governor Bill Haslam's desk for signature.  The Governor had previously stated that he would likely sign the legislation, if approved by the Tennessee Legislature. For those wondering, there is another "Ban the Box"

Berger v. National Collegiate Athletic Association, et al. - United States District Court, Southern District of Indiana, Indianapolis Division Facts :  Three plaintiffs brought suit against the National Collegiate Athletic Association ("NCAA") and 123 NCAA school on the grounds that while the plaintiffs were members of the women's track track and field team at the University of Pennsylvania ("Penn"), they were employees of Penn and entitled to compensation.  The plaintiffs asked the Court to certify the case as a class action while the defendants moved to dismiss the claim on the grounds that the plaintiffs lacked a valid Fair Labor Standards Act ("FLSA") claim. Holding :  The Court noted that in order for plaintiffs to proceed on their claim, the matter hinged on whether the plaintiffs were characterized as "employees" of Penn, under the FLSA.  While the FLSA provides the definition of what constitutes an "employee", the

I know there are a few readers of the blog who work in HR and enjoy my posts on the topic.  With transgender matters becoming a more common topic in the workplace that many in the HR field are being confronted with, I think the development out of Seattle is an interesting read.  Given that I have not posted an article dedicated to HR issues in a few weeks, I thought this would be a good time to highlight a few HR related notes I have recently come across. As always, below are a few articles that caught my eye this week. Seattle Prepares "Culturally Responsive" Training to Deal With Emerging Transgender Matters Joel Connelly has a good note on Seattle Mayor Ed Murray's executive order which requires "culturally responsive" training for city workers to deal with transgender issues in the workplace.  Under the new executive order, city workers will receive additional resources and training "to ensure that members of our [Seattle's] transgender

Recently, Oregon's House of Representatives passed a bill that would create a tiered minimum wage rate in the state.  Under the bill approved in the House, different minimum wage rates wold go into effect around the state, depending upon population density.  This was one of the more unique proposals to come out on the minimum wage front, in regard to how to handle minimum wage rates for workers not only in larger cities such as Portland, but smaller towns and rural areas such as Astoria or Valley Falls. In the final bill approved by the Senate and signed into law by Governor Kate Brown, workers inside Portland's urban growth boundary will receive $14.75/hour, $13.50/hour for workers in midsize counties, and $12.50/hour for workers in rural areas.  These tiered minimum wage rates will go into effect by 2022.   While some supporters of a minimum wage hike had advocated for a $15/hour minimum wage rate, this final bill was still not sufficient.  With that being said, I

Late last month, the EEOC published a Notice of Proposed Rulemaking on the federal government's obligation to engage in affirmative action in employment for individuals with disabilities.  (Note, the proposed rule would not apply to private businesses.)  These proposed changes would clarify the obligations that the Rehabilitation Act of 1973 imposes on federal agencies as employers, in addition to the obligation to not discriminate on the basis of a disability. The proposed rule "reaffirms the federal government's commitment to being a model employer of people with disabilities."  Under the proposed rule, federal agencies would be required to adopt the goal of achieving a 12% representation rate for individuals with disabilities and a 2% representation rate for individuals with targeted/severe disabilities. Perhaps one of the more important portions of the proposed rule is the requirement that agencies provide personal assistance services to employees who,

Washington v. Recology San Francisco - United States District Court, Northern District of California Facts :  Since 2013, Daryle Washington ("Washington"), an African American, worked for Recology San Francisco ("Recology") as a material handler.  In December 2013, Washington saw a fellow worker, Jon Peralta ("Peralta"), remove a noose from a sorting line.  Peralta, who was Caucasian, placed the noose on the backpack of another co-worker, who was also African American.  Washington saw Peralta do this and noted that Peralta tighten the noose and walk away laughing.  Washington reported the conduct to his supervisor.  Peralta was subsequently suspended without pay, pending an investigation.  After an investigation, Peralta was suspended for five days without pay. Peralta returned to work and was placed alongside Washington.  Washington stated he felt uncomfortable and was denied a request to be placed away from Peralta.  In January 2014, Washingto

Hardly a week (or day) goes by that I do not come across articles on minimum wage issues in cities, towns, and states across the country.  This week was no exception as developments emerged on the minimum wage fight in Alabama and the University of Wisconsin, among others. As always, below are a few articles that caught my eye this week. A Look at the Employment Law Legacy of Justice Scalia Readers have likely heard about the recent death of Supreme Court Justice Antonin Scalia in February.  Over at the Orrick Employment Law and Litigation Blog, they have a good round up of the employment law legacy of Justice Scalia over the years.  Everything from his opinion in Wal-Mart v. Dukes to AT&T Mobility v. Concepcion is covered with an additional emphasis on what might happen to the current employment law cases pending before the Court.  Well worth a review! Unease Continues Over NLRB's Franchisors & Joint-Employer Issue Ron Ruggless has an interesting note

A few weeks ago, I wrote an article about attempts by the Alabama legislature to block minimum wage hikes in cities and towns across the state.  ( Alabama House of Representatives Votes to Block Minimum Wage Hike ).  By way of background, Birmingham had passed a city ordinance that would have raised the city's minimum wage to $10.10/hour by 2017. However, Republicans in the state legislature sought to prevent this minimum wage hike from taking effect and began work on legislation to block the measure.  The bill passed the House with a vote of 71 - 31 earlier this month.  This past Thursday, the Senate voted 23 - 11 to approve the bill and a few hours later, Republican Governor Robert Bentley signed the bill into law. As a result, the ordinance passed by Birmingham will not take effect as originally planned.  In fact, under this bill, cities and towns within the state will be prevented from raising its minimum wage rates.  (Note, Alabama does not have a state minimum wage rat

In many states across the country, today is primary (or caucus) day...also known as 'Super Tuesday'.  For those that did not vote early and intend to participate in the primary, today is the day to head to the polls.   As always, the question then becomes whether employees are entitled to time off from work to vote. Of course the answer is...It depends.  Each state treats the matter differently.  So whether you work in Alabama, Alaska, Arkansas, Colorado, Georgia, Massachusetts, Minnesota, Oklahoma, Tennessee, Texas, Vermont, and Virginia...make sure to consult the laws in your state first. Here in Texas, generally, an employer may not refuse to allow an employee to take time off to vote.  However, time off is not required if the employee has two consecutive hours available to vote when the polls are open (and not required to be at work).  See Chapter 276 of the Texas Election Code .  As well, it has been held that if an employee volunteers to work overtime hours on